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Freedom of the Seas - Origins of the concept of freedom of the seas

The concept of freedom of the seas predates the American nation, arising
in the European world amid the heightened rivalries of the European
state system in the fifteenth and sixteenth centuries. It was on the
principle of freedom of the seas that King Francis I of France disputed
the exclusive right in certain seas that the pope had granted to Spain
and Portugal in the fifteenth century. Later, Queen Elizabeth I of
England proclaimed: "The use of the sea and air is common to all;
neither can any title to the ocean belong to any people or private
man." Perhaps the most notable assertion of the principle of
freedom of the seas was the book
Mare Liberum
(1609) by Dutch jurist Hugo Grotius. Grotius defined the seas as being,
like the air, limitless and therefore common to all people. Despite
Grotius's efforts, European mercantilist powers in the
seventeenth and eighteenth centuries generally sought to control as much
of the world's oceans as they could.

From the beginning of the American nation, U.S. political leaders
championed the view that the seas ought to be free in war as well as in
peace. As John Adams said in 1783:

The United States of America have propagated far and wide in Europe
the ideas of the liberty of navigation and commerce. The powers of
Europe, however, cannot agree as yet, in adopting them to their full
extent…. For my own part, I think nature wiser than all the
courts and estates of the world, and, therefore, I wish all her seas
and rivers upon the whole globe free.

Benjamin Franklin was of the same mind. In 1782 he said, "In
general, I would only observe that commerce, consisting in a mutual
exchange of the necessaries of life, the more free and unrestrained it
is the more it flourishes and the happier are all the nations concerned
in it." The American assertion of the principle of freedom of the
seas thus became closely connected to the principle of freedom of
commerce. Applied in wartime, these principles translated into the right
of citizens of neutral states to carry on their normal trading pursuits
without interference by the belligerents, unless that trade was in a
narrowly defined list of war goods destined for a belligerent.
Throughout its history, with two exceptions—the Civil War and
World War I— the United States has been the principal proponent
and defender of that view.

The American position on freedom of the seas was first expressed on 18
July 1776, when John Adams presented to the Continental Congress the
report of a committee of which he was chairman and whose other members
were Benjamin Franklin, John Dickinson, Benjamin Harrison, and Robert
Morris. The committee had been appointed some five weeks earlier and had
been charged with preparing a "plan of treaties to be entered
into with foreign states and kingdoms." Its report proposed a
model set of articles concerning neutral commerce in wartime to be
included in treaties of amity and commerce with other powers. On 17
September of the same year, Congress adopted the committee's
proposals, which thereupon became the first official American statement
on the freedom of the seas.

The proposal contained four articles: first, should one of the
signatories be at war and the other neutral, the citizens of the neutral
could trade with the enemies of the belligerent in all items except
contraband of war, the latter being limited to arms, munitions of war,
and horses (food and naval stores were specifically excluded); second,
citizens of the neutral could trade with the enemies of the belligerent
in noncontraband not only from enemy ports to neutral ports but also
between ports of an enemy; third, enemy noncontraband found in neutral
ships was not liable to confiscation by the belligerent ("free
ships make free goods"); and fourth, neutral goods, whether
contraband or noncontraband, found in enemy vessels were liable to
confiscation.

These principles, known collectively as the Treaty Plan of 1776, and
clearly favorable to neutrals, were not invented by Adams and his
colleagues. For more than a century they had been a part of the
international maritime scene and had been practiced by neutrals and
belligerents during the great dynastic wars of the seventeenth and
eighteenth centuries, albeit with occasional modifications. They had
also been incorporated in several treaties between European powers, most
notably France and Great Britain in 1655, 1686, and 1713.

It is not surprising that Adams's committee proposed, and the
Congress accepted, the maritime principles of 1776. For one thing, they
were a natural and logical concomitant of the Declaration of
Independence. It seemed only reasonable that the "unalienable
right to life, liberty, and the pursuit of happiness" should
extend to the high seas. More important, the principles were consistent
with the visions that the Founders had for the new republic's
future. As Adams noted, the country was to "be as little as
possible entangled in the politics and controversies of European
nations." It would take no part in Europe's wars. Rather,
American merchants would be the great neutral carriers of the needs of
the belligerents, and for that role they would need the protection of
the maritime principles of 1776. Should the United States find itself a
belligerent at some future time, a liberal interpretation of the rights
of neutrals would still be useful and important. The Founders never
expected that the American navy would be large and powerful enough to
protect American shipping in wartime—neutral vessels would have
to be depended upon to handle American commerce, and for that they would
need the cover of the principles of 1776.

American diplomats succeeded in incorporating the cherished maritime
articles into the first bilateral treaty signed by the new republic. In
1778 the Franco-American Treaty of Amity and Commerce contained almost
without change the language and the substance of the Treaty Plan. But
that was only the beginning of the nearly universal acceptance of the
American position. Three more agreements—with the Netherlands in
1782, with Sweden in 1783, and with Prussia in 1785— also
included the maritime articles of 1776.

Meanwhile, in 1780 the Russian empress, Catherine the Great, had
announced that her country's neutral commerce in the war then
raging between England and its former colonies would be governed by four
principles. Three of them—free ships make free goods, freedom of
neutrals to trade between ports of a belligerent, and contraband limited
to arms and munitions— came directly from the Treaty Plan of
1776. The fourth—that a port be considered legally blockaded only
if there were a sufficient number of vessels at its mouth to make entry
dangerous—had not been dealt with by Adams's committee in
1776. It was, however, included in a new treaty plan adopted by the
United States in 1784. At Russia's invitation, seven other
nations adhered to Catherine's principles. Thus, of the great
powers only Great Britain refused to be bound by the liberal maritime
principles. Hard though they tried, the American commissioners
negotiating the peace that ended the war between mother country and
colonies could not get the principles incorporated into the final
treaty. English statesmen, envisioning their country more often
belligerent than neutral—and big-navy belligerent, at
that— rejected the American overtures. The treaty said nothing
about the rights of neutrals.

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